Calhoun v. Tribley

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND GRANTING IN PART A CERTIFICATE OF
APPEALABILITY

Arthur
J. Tarnow, Senior United States District Judge

Petitioner
Imari Calhoun has filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. At the
time he filed the petition, Petitioner was in the custody of
the Michigan Department of Corrections.[1] Petitioner
challenges his conviction for assault with intent to do
bodily harm less than murder on the grounds that an
insufficient factual basis supported the plea, the plea was
involuntary, the trial court lacked jurisdiction, he acted in
self-defense, and cumulative error denied him his right to
due process. Respondent, through the Attorney General's
Office, has filed an answer in opposition to the petition
arguing that some of the claims are untimely, unexhausted,
and/or procedurally defaulted and that all of the claims are
meritless. The Court denies the petition and grants in part
and denies in part a certificate of appealability.

I.
Background

Petitioner's
conviction arises from the assault of Paul Castonguay in
Detroit on December 17, 2006. Castonguay testified at the
preliminary examination that, on that date, he was visiting a
friend on Rutland Street in Detroit. At approximately 2:30
a.m., Castonguay stepped outside. He was approached by
Petitioner, who Castonguay knew lived in the neighborhood.
Petitioner asked Castonguay to drive him somewhere, but
Castonguay declined. Petitioner continued to pester
Castonguay for a ride. Finally, Castonguay asked Petitioner
what part of no he did not understand. Castonguay testified
that Petitioner then punched him in the face. Castonguay told
Petitioner to leave him alone; he did not want to fight.
Petitioner held a knife in his hand and lunged at Castonguay.
Castonguay attempted to protect himself and the two men fell
to the ground. Petitioner stabbed Castonguay three or four
times. Castonguay pleaded with Petitioner not to stab him any
more. Petitioner lunged at him again. Castonguay was able to
flee into the home where he called police. He was transported
by ambulance to a hospital where he was treated for multiple
stab wounds. Castonguay's injuries were severe. His
spleen was removed, and he spent a week in intensive care on
a ventilator.

Petitioner
was charged in Wayne County Circuit Court with assault with
intent to murder and felonious assault. On April 24, 2008,
Petitioner pleaded guilty in Wayne County Circuit Court to
assault with intent to do great bodily harm less than murder.
In exchange for Petitioner's plea, the prosecutor
dismissed a charge of assault with intent to murder, assault
with a dangerous weapon and a third habitual offender
enhancement. On May 9, 2008, he was sentenced to five to ten
years in prison.

Several
months after sentencing, Petitioner filed a motion to
withdraw his plea and for a Ginther hearing. The
trial court denied the motion and denied a subsequent motion
for reconsideration. Petitioner then filed an application for
leave to appeal in the Michigan Court of Appeals. He raised a
single claim:

This Court must vacate Mr. Calhoun's conviction for
assault with intent to do great bodily harm less than murder
because there is an insufficient factual basis for the plea.

Petitioner
sought leave to appeal in the Michigan Supreme Court. He
raised the claim raised in the Michigan Court of Appeals and
two additional claims: (i) his plea was involuntary because
counsel was ineffective; and (ii) appellate counsel was
ineffective in failing to raise this claim in the Michigan
Court of Appeals. The Michigan Supreme Court denied leave to
appeal. People v. Calhoun, 488 Mich. 1049 (2011).

Petitioner
then filed this habeas petition. He raised claims regarding
the sufficiency of the factual basis for his plea,
voluntariness of the plea and ineffective assistance of
counsel. Respondent filed a motion to dismiss on the ground
that the second claim was not fully exhausted. The Court
found the claims raised in the petition were not fully
exhausted, but, because dismissal of the petition might
jeopardize the timeliness of a future habeas petition, the
Court denied the motion to dismiss, and stayed the
proceeding. 5/18/12 Order (ECF No. 19).

Petitioner
then filed a motion to lift the stay in this case and an
amended petition. The Court granted the motion and reopened
this proceeding. 3/21/14 Order (ECF No. 24). The petition
raises these claims:

I. This Court must vacate the Petitioner's conviction for
“assault with intent to do great bodily harm, ”
because there is an insufficient factual basis for the plea
that was rendered.

II. The petitioner was deprived of his constitutional rights
of the V, VI, and XIV Amendment of the United States, because
of last resort, and distress pleadings in the instant case,
when counsel for the petitioner failed to adequately
represent him and the case at true crucial stages, and his
plea was ...

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